Independence Day Special : Is Independent India A Creation Of British Parliament?

Independence of India was not a mere transfer of power; it was the birth of a new nation, with  renewed identity and fresh set of aspirations. It was the result of long struggle by the people of India. The freedom struggle was not just a political mobilization; rather, it was a cultural movement which shaped the national identity.

The abstract notion of independence was given concrete contours through the legislative medium of "Indian Independence Act,1947". Enacted by the British Parliament, the Indian Independence Act dealt with the modalities of transfer of power and transitory provisions. The end of colonial domain and the division of British India into two domains- India and Pakistan- were implemented through this Act.

The preamble of the Act read :- "An Act to make provision for the setting up in India of two independent Dominions, to substitute other provisions for certain provisions of the Government of India Act, 1947". Fifteenth August 1947 was the "appointed day" as per the Act. As per Section 1 of the Act, two independent dominions, respectively known as India and Paksitan, will come into existence from the appointed day (But the transfer of power for Pakistan was ceremonially held on August 14, 1947, because Lord Mountbatten wanted to attend both the functions of India and Pakistan).  The Act provided for mechanism for division of Bengal and Punjab provinces between both nations. It established the office of Governor General to represent the British Crown in the new dominions, until the adoption of Constitution.

Colonial rule was put to end by Section 7, which stated that from the appointed day, the British Crown will have no responsibility in the aspects of governance of areas which were part of British India.  It also stated that the suzerainty of British Crown over Indian States lapsed with effect from the appointed day. The States were given liberty to opt out of the common wealth.

Legislative Autonomy & Constituent Assembly

Section 6 of the Act granted legislative autonomy to the new dominions. It stated that laws passed by the UK Parliament after the appointed day will not apply to the dominions. It also stated that new legislations passed by the dominions need not get the assent of the Crown, and that they will not be void due to any repugnancy with laws passed by the UK Parliament.

Section 8 conferred power on the Constituent Assembly to prepare a Constitution for the new dominions. The Constituent Assembly was established as per Cabinet Mission plan of 1946, and its members were elected in the provincial elections held in 1946.  It was given legal recognition by Section 8 of the Indian Independence Act. This Section also dealt with transitory powers, by stating that till the enactment of Constitution, the dominions will be governed as nearly as possible in accordance with the Government of India Act 1935.

Is Independent India a Creation of British Parliament?

If the end of colonial rule and independence of India was made possible through this enactment, one doubt will arise- Is Independent India a creation of British Parliament?.

It is not acceptable that Indian Independence is solely founded on an Act passed by the British Parliament. Reducing Indian independence to a mere legislative grant by the imperial ruler will impinge on the pride and autonomy of Indian people, who won freedom through years of fight and struggle.

Certainly this was a legislative anomaly, which had to be corrected. What would have been the outcome if the UK Parliament repealed the Indian Independence Act with retrospective effect?

The Constituent Assembly applied their mind on this aspect. To assert independence and autonomy of India, it was necessary to sever all sorts of legislative ties which linked it with the imperial ruler. This was done by repealing the Indian Independence Act, 1947 as per Article 395 of the Constitution of India. Here, one may wonder- whether the Constituent Assembly, which was a creation of the Indian Independence Act, 1947, could have repealed the Act, which was its parent in a sense.

This is where the independent existence of Constitution of India gets clear. The repeal of the Indian Independence Act was done by the Constitution of India, and not the Constituent Assembly, because the Constitution assumed its own  autonomous existence, independent of its creators, upon coming into being. The Constitution came into existence by automatically extinguishing its creator, the Constituent Assembly, which was disbanded on January 24, 1950. This is symbolic of the independent existence of Constitution, without any pre-existing ties to any external entity. This is where the words "We, the people  of India,..... hereby enact, adopt and give to ourselves this Constitution" resound with meaning. The Constitution was not given to the people of India by the UK Parliament or the Constituent Assembly. It was given to the people of India by themselves.  Thus, "the people of India", became the source of the Constitution of India, and its Kalsenian ground norm.

In doing so, the Constituent Assembly had taken cue from Ireland. Irish Independence was granted as per Irish Free State Constitution Act, 1922 enacted by the UK Parliament. Irish Constitution was enacted by the Constituent Assembly created by this Act. In order to cut the umbilical cord with the previous ruler, the Irish Constitution abolished the Irish Free State Constitution Act, 1922.

Jurisprudentially, this practise is called "Constitutional Autochtony", which refers to deliberate Constitutional measures adopted by newly independent States to place the root of their autonomy in their indigenous soil, by breaking the chain of legal continuity from erstwhile rulers.  This concept has been well explained by Dr.Shivprasad Swaminathan(Associate Professor, Jindal Global Law School), in his article "India's benign constitutional revolution", published in "The Hindu" in 2013. He explains that "the goal of constitutional autochthony is to deliver an indigenous Constitution, the source of whose ‘authority’ can be located in the new state’s own soil". Dr. Swaminathan states that the quest for autochthony symbolically ensures that the independent future will be insulated from a troubled imperial past.

This ingenious measure ensured that the roots of Indian independence will not be located in an imperial legislation, but within the hopes and aspirations of people of India, as it rightly should be.

Published in Live Law on August 15, 2018

Somnath Chatterjee : A Man Who Held Constitution of India Always Supreme

"Rule of law has to be enforced not by expanding any organ's extent of powers, by encroaching into areas specifically assigned to any other, but by diligently and effectively discharging each one's assigned responsibilities."- Somnath Chatterjee, commenting on judicial interference in legislative domain.

Somnath Chatterjee must have despised an unidimensional life. Perhaps, that's the reason why he chose to wear multiple hats to perform all ranges of roles which legal education enables one to do - lawyer, legislator, politician, author, jurist and parliamentarian.

He was also someone who defied predictable patterns in life. Though his father Nirmal Chandra Chatterjee- a prominent lawyer who went on to become a judge of Calcutta High Court - was one of the founding members of Hindu Mahasabha, Somnath Chatterjee drifted towards its ideological rival, the Left, and became a member of the Communist Party.  Later, he defied the diktat of his own Party, when his role as a Speaker and as a party member came in conflict, inviting expulsion from the party.

He had an illustrious career at law, and was designated as a Senior Advocate. But his deference for judiciary did not restrain him from openly calling foul, when he felt that Supreme Court was crossing the line by reviewing the decisions of Speaker and issuing directions for conduct of legislative proceedings. He launched a fiery battle to defend the Parliamentary privileges guaranteed by the Constitution, for he sternly believed that the Constitution was supreme, and  that all organs of the State have to perform only within their demarcated territories, strictly following the constitutional scheme.

Somnath Chatterjee was unanimously elected as the Speaker of Lok Sabha in 2004, when the coalition government under UPA came to power. His scholarship in Constitutional law and his outstanding track record as a Parliamentarian earned him the post.  As Speaker, he was very particular about preserving Parliamentary supremacy in the domain reserved to it by the Constitution, and loathed any sort of interference, even from the judiciary.

When the Supreme Court ordered the advancement of floor test of Jharkhand Legilsative Assembly in 2005 as per decision in Anil Kumar Jha v Union of India AIR 2005 SC 4255 (in a situation somewhat similar to the recent Karnataka Assembly case), Chatterjee was disappointed. He openly criticised the Supreme Court judgment, overlooking political considerations.

"It was a wrong decision. With due respect for the judiciary, which I fully respect, I say the Supreme Court should not have given this decision.  It was not judiciary’s work.  Whatever happened in Jharkhand assembly on the day decided by Supreme Court for vote of confidence was there for all to see. What would have the Court done after that? Could it have jailed the pro-tem speaker and the MLAs? Could it have sent police inside the assembly?", he said about the decision.

He even sought a presidential reference on the issue whether SC could order the conduct of proceedings of assembly in a particular manner. However, the ruling executive did not pursue the matter further, having regard to political ramifications. But, Chatterjee was unrelenting, and he convened a meeting of Speakers of all Assemblies, to discuss the issue. "I am the speaker of the Lok Sabha, the House of people’s representatives of the world’s largest democracy, I cannot silently see any interference in the functioning of legislature, if I remain silent, then I would be failing in my duty"- this was his firm conviction.

Late in 2005, another crises emerged, when  a sting operation caught several MPs demanding bribe for asking questions in Lok Sabha. Somnath Chatterjee, as the Speaker, issued order expelling 10 Lok Sabha MPs caught in the "cash for query scam". The expelled MPs approached the Supreme Court.  The Supreme Court issued notice to the Speaker on their petition. This was strongly objected to by Chatterjee. He stated that the decision of the Speaker cannot be questioned by the Court, and that the Court had no authority to issue notice to the Speaker. He relied on Article 122 of the Constitution of India, which stated "1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure," and that "(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers."

Another show-down with the judiciary loomed large, when he declared that he will not respond to the notice of SC.  "As Speaker of Lok Sabha, I used my discretion because the matter concerns the House and is of utmost importance. Noting could have justified corruption. I think the issue is outside the purview of the judiciary since Parliament has right to decide such cases on its own", he said.

"Rule of law has to be enforced not by expanding any organ's extent of powers, by encroaching into areas specifically assigned to any other, but by diligently and effectively discharging each one's assigned responsibilities.

In the interests of harmonious functioning, I believe that no one organ of the State should usurp the functions which essentially belong to another, nor should it abdicate its essential functions and thereby upset the well-cherished principles of separation of powers and checks and balances provided by our Constitution", he added.

From his words, it is clear that he could not tolerate any deviation from the Constitutional scheme, whatever be the expediency. His decision to expel the MPs was upheld by a Constitution Bench decision of the Supreme Court in Raja Ram Pal v Speaker, Lok Sabha (2007) 3 SCC 184. In the decision, it is specifically noted that the Speaker did not appear in response to the notice. The expulsion was defended by the Union of India. Though the Court accepted the primacy of Parliamentary privileges, it held that judicial review of Speaker's decision is possible in exceptional circumstances. "Proceedings (of Parliament) which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny", held the bench.

Chatterjee was not happy with this conclusion made by the Supreme Court. He felt that the Court was rewriting Constitution under the guise of exercising judicial review.

He had to undergo another test of character in 2008, when CPI(M), then an ally of UPA, withdrew support to the government and moved an no-confidence motion over disagreement with India-US Nuclear Pact. The party leadership wanted Somnath Chatterjee to resign from the Speaker-post. However, Chatterjee refused to do so. He was of the strong belief that Speaker was above political considerations, as it was a Constitutional post. Therefore, he said that as an incumbent of a Constitutional post, he cannot obey party commands. Such a stand was unprecedented, as no Speaker ever in the history of Indian politics has hidden his political loyalties.

Commenting on the situation, the Telegraph wrote :- "Mr Chatterjee should do his duty, not his duty by his party, but his duty as a holder of an important constitutional office. Mr Chatterjee has been an extraordinarily successful speaker and before that he has been an eminent parliamentarian and lawyer, he needs nobody to tell him the importance of the Constitution. If he resigns as speaker he will set a very bad precedent; if he refuses to resign he will be remembered as a speaker who stood firm by the Constitution. The choice is between being a party loyalist and being a public figure. The fact that Mr Chatterjee did not immediately accede to Mr Karat’s request to resign is a positive sign. Mr Chatterjee holds in his hands a crucial issue of Indian democracy. It might by far be the best thing he ever did if he does not resign".

Such was the depth of character of Chatterjee that he could rise above his party loyalty, to uphold his allegiance to the Constitution. But that cost him his party membership. "It was the saddest day of my life", he said about the day when he was expelled from party for his refusal to resign from the post of Speaker.

In the matter of Constitutional interpretation, Somnath Chatterjee must have been an originalist-puritan, who believed in the sanctity of the words of the Constitution, which should not be tinkered with to suit the expediency of the moment. He would have preferred to think that Constitutional text is strong enough to provide answers to all questions posed by the present, if one has the patience and foresight to look through it. He had his reservations about the basic structure doctrine, despite being a staunch opponent of emergency. He was of the opinion that judges are out of touch with the pulse of the society, and hence should not deliberate upon political issues.

Originalism may be a waning school of thought these days, as it is regarded as a bondage to the wisdom of past. Yet, one has to salute Somnath Chatterjee for his unwavering commitment to Constitution, over and above his personal interests.

The democratic and liberal spirit of Chatterjee is evident from an order passed by him as Speaker, deciding not to proceed against a press report which had published defamatory content against the Speaker and Parliament. He held that it would be beneath the dignity of the House to take further note of the motivated imputations in the article by proceeding against it.

He has expressed disappointment with the confrontational style of politics being practised in the new age, without any unified goal or purpose. "We may differ on ideology, but that does not mean we should be at loggerheads.", he commented.

With his demise, we have lost a true democrat whose prime loyalty was towards constitutional morality.

Published in Live Law on August 14, 2018

Law As Tool For Social Change : Examples From Karunanidhi

The legislative changes piloted by him are notable, as they are illustrative of the power of law to act as a catalyst for social change.

Five-times CM and president of Dravida Munnetra Kazhakam(DMK) Party Muthuvel Karunanidhi, who passed away on August 7, rode to power on the wave of Dravidian movement. The Dravidian movement powered by the thoughts of Periyar E.V Ramaswamy started off as an attempt to assert Tamil cultural identity; gradually it gained more ideological depth under the guidance of Periyar, to become a radical-reformist movement based on rationalism, atheism, equality and social justice. Periyar’s clarion call for the destruction of upper caste hegemony, and restoration of equal status of backward castes, triggered off the ‘self-respect movement’. Periyar carried out the translation of Dr.Ambedkar’s work “Annihilation of Caste” in Tamil and cited Ambedkar in several of his writings and speeches.  Dravidian politics helmed by C.N. Annadurai and later by his protégé Karunanidhi drew from the well of thoughts of Periyar.

The astute administrator in Karunanidhi realized the power of law to  advance reform. Certain legislative moves made during his tenure demonstrate how law can be used as an instrument of social change, as propounded by the sociological school of jurisprudence.   Despite criticism about his brand of politics, at least during the later phase, his legislative changes are worthy of discussion.

Immediately after DMK got to power for the first time in 1967 under the leadership of C.N.Annadurai, they put into action their intentions to disrupt the social status-quo to further Dravidian ideology. Karunanidhi was a minister in the cabinet of Annadurai. First thing Annadurai did – change of name of the State as Tamil Nadu from Madras by enacting The Madras(Alteration of Name Act) 1968 – was symbolic of asserting Tamil sub-nationalism by cutting off ties with the colonial past. A more significant change during Annadurai’s tenure was the amendment of Hindu Marriage Act 1956, as per the Hindu Marriage(Tamil Nadu Amendment) Act 1967. By this amendment, Tamil Nadu became the first state to legalize “self-respect” marriages conducted without a Brahmin priest. The amendment introduced Section 7A in the principal Act, permitting “suyamariyathai”(self-respect) and “seerthiruttha”(reformist) marriages as legal when solemnised in the presence of friends, relatives or any other person by exchanging garlands or rings or by tying of mangalsutra or by a declaration in language understood by both the parties that they accept each other to be their spouses. This was putting the “self-respect movement” of Periyar into legislative action.

When Annadurai died in 1969, Karunanidhi became the CM, and carried forward the vision of his ideological mentors.

Changing hereditary appointment of ‘Archakas’ in Temples.

A revolutionary move by Karunanidhi after he became CM was bringing in legislation to change the rule of hereditary appointment of ‘archakas’ in temples, which had kept away several castes from doing priestly functions in temples. This was done by way of Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act 1970. Section 55 of the Tamil Nadu Hindu Religious and Charitable Endowments 1955 had given recognition to the hereditary appointment of archakas, by stating that “in cases where the office or service is hereditary, the person next in line of succession shall be entitled to succeed”

The 1970 Amendment introduced by Karunanidhi government changed this rule, by adding sub-section(2) to Section 55 stating “No person shall be entitled to appointment to any vacancy merely on the ground that he is next in the line of succession to the last holder of office”. As the objective of the Amendment, it was stated that the hereditary principle of appointment of office holders in the temples should be abolished and that the office on an archaka should be thrown open to all candidates trained in recognised institutions in priesthood irrespective of caste, creed or race

A group of hereditary archakas and mathadhipathis approached the Supreme Court challenging this amendment as infringing their right to freedom of religious belief under Articles 25 and 26 of the Constitution of India. This was considered by a Constitution Bench, resulting in the landmark decision Seshammal v.State of Tamil Nadu AIR 1972 SC 1856, which explains the scope of state interference in religious affairs under Articles 25 and 26 so as to provide for social reform.

The Court repelled the challenge against the constitutional validity of the Amendment.  It was held that appointment of archaka was a secular function, upon which the State can interfere as per Article 26 of the Constitution. Hence, the Amendment was upheld as not interfering with any religious function or practise protected by Article 25. At the same time, the Court held that in a Saivite or a Vaishnavite temple the appointment of the archaka will have to be made from a specified denomination, sect or group in accordance with the directions of the Agamas governing those temples.

Giving equal coparcenary rights to Women

As per the Hindu Succession Act, 1956 enacted by the Parliament, daughters had no equal coparcenary rights in the ancestral property. They also had no right to seek for partition.

This discriminatory provision in the Central Act was amended, when Karunanidhi became CM during 1989. The Hindu Succession(Tamil Nadu Amendment) Act 1989 introduced Section 29A in the principal Act providing equal rights to daughters in coparcenary property. The newly introduced provision had a non-obstante clause, giving it overriding effect over Section 6 of the principal Act, which excluded daughters from coparcenary share. The Amendment also enabled daughters to seek partition of property. This amendment was in furtherance of Periyar’s thoughts on gender equality.

It took further 16 years for the Parliament to remove the discriminatory provisions, when it enacted the Hindu Succession (Amendment) Act in 2005, by which provisions similar to the 1989 TN Amendment were included in the principal Act. Perhaps, Karunanidhi was someone who thought ahead of time.

Further changes in rule of appointment of ‘archakas’

After assuming power in 2006, the DMK government under Karunanidhi attempted to bring in further changes in the rule of appointment of temple archakas. Although the 1970 amendment had abolished the hereditary rule, several castes were still excluded from appointment of archakas due to prescriptions in agamas.

In 2002, the Supreme Court had held that the appointment of a non-Brahmin as a priest in a temple did not violate the religious rights of a Brahmin priest under Article 25 and 26(Adithyan v. Travancore Devaswom Board AIR 2002 SC 3538).

Taking a cue from his judgment, the DMK government issued a government order on May 23, 2006 stating, “Any person who is a Hindu and possessing the requisite qualification and training can be appointed as  Archaka in Hindu temples". The order made explicit reference to the SC decision in Adithyan.                          Also, an Ordinance(since lapsed) was brought in to further amend the Tamil Nadu Hindu Religious Institutions Act to state that no custom or usage will stand in the way of appointing a qualified person as archaka.

The Explanatory statement to the Ordinance indicated the purpose behind further amendment of S.55(2) in the following terms.

"Archakas of the Temples are to be appointed without any discrimination of caste and creed. Custom or usage cannot be a hindrance to this. It is considered that the position is clarified in the Act itself and accordingly, it has been decided to amend S.55 of the said Act suitably”

This move was challenged in the Supreme Court, which was considered by a two judges Bench of Justice Ranjan Gogoi and Justice N.V Ramana. The Court did not invalidate the Government Order, stating that its validity can be determined only on a case to case basis. It was held that the exclusion of some and inclusion of a particular segment or denomination for appointment as archakas would not violate Art.14 so long such inclusion / exclusion is not based on the criteria of caste, birth or any other constitutionally unacceptable parameter. The Court also emphasised the importance of Agamas and held that appointment has to be in consonance with Agamas. It was held that so long as the injunctions in Agamas were not contrary to Constitutional parameters, they have to be deferred to.(Adi Saiva Sivachariyangal Nala Sangam v. State of T.N. AIR 2016 SC 209)

In 2008, Tamil Nadu became the first state to evolve a policy for rights of transgenders, when his government set up Tamil Nadu Transgender Welfare Board. This was years before the Supreme Court declared the rights of transgenders in NALSA judgment in 2014.

The political legacy left behind by Karunanidhi is debatable, and he is severely criticised for his seeming descent into opportunism in coalition politics and perpetuation of rule by dynasty. Nevertheless, the legislative changes piloted by him are notable, as they are illustrative of the power of law to act as a catalyst for social change.

Published in Live Law on August 9.

Immediate Post-Retirement Appointment of Judges : Mutual Bonhomie between Executive And Judiciary?

“The Tribunals should not be heaven for retired persons and appointment process should not result in decisions being influenced if the Government itself is a litigant and appointment authority at the same time. There should be restriction on acceptance of any employment after retirement ”- A Bench headed by Justice Adarsh Kumar Goel quoted and broadly approved the Amicus report, in Rojer Mathew v. South Indian Bank Ltd on May 7, 2018.

It is timely to revisit the debate regarding the propriety of judges accepting post-retirement jobs from Government in the light of three recent appointments. On July 6, Justice A.K Goel was appointed as the Chairman of National Green Tribunal on the same day of his retirement as Supreme Court judge. Justice R.K Agrawal was appointed as the Chairman of the National Consumer Redressal Commission (NCDRC) during last week of May, within a few weeks after his retirement from Supreme Court. Justice Antony Dominic was appointed the Chairman of the State Human Rights Commission by the Kerala Government, within a week of his retirement as the Chief Justice of the High Court of Kerala during last week of May.

These appointments, which took place within a short span of the retirements of the said judges, have raised quite a few eyebrows. The immediate appointments suggest that decisions regarding their post-retirement assignments were already taken, at least in principle, by the respective governments even during the tenure of the judges. Even before their retirements, rumors were rife amongst the members of the bar regarding the finalization of their post-retirement posts. This certainly casts a cloud over judicial decisions rendered during their tenure in cases involving stakes of the respective governments, as the executive has a major say in appointments to quasi-judicial bodies.

Irony stares stark at Justice A.K Goel who accepted the appointment by Central Government as the Chairman of NGT on the very same day of his retirement, as the bench headed by him was dealing with the issue of restructuring of Tribunals in the case Rojer Mathew v. South Indian Bank Ltd. There, the amicus curiae Senior Advocate, Arvind P Datar had suggested as follows.. “The Tribunals should not be heaven for retired persons and appointment process should not result in decisions being influenced if the Government itself is a litigant and appointment authority at the same time. There should be restriction on acceptance of any employment after retirement ”-. The bench said that they ‘broadly accepted’ the concept note , while dealing with the need to restructure tribunal system.

The debate gets weighty on noting that the judges had dealt with sensitive  issues during the twilight of their tenure. Justice R.K Agrawal headed the bench which dismissed the petition questioning the Centre’s appointment of R.K Asthana as CBI Special Director, and also the petition seeking an investigation into corruption allegations in the Prasad Education Trust cases which was decided by the bench of Chief Justice of India. Justice R.K Agrawal was also part of the specially constituted bench which annulled the order of the bench of Justice Chelameswar which had ordered a special investigation in the medical college bribery case. Therefore, Justice Agrawal had dealt with cases involving stakes of the Central Government and the Chief Justice of India. The appointment of Chairman of NCRDRC is made by the Central Government on consultation with the Chief Justice of India. In that backdrop, a dispassionate observer cannot be faulted for doubting the presence of bias in the judicial process leading to these judgments in the light of the immediate post-retirement assignment given to the judge.

As regards Justice Antony Dominic, as the Chief Justice of the High Court of Kerala, he happened to deal with cases which had the potential to politically affect the ruling party in Kerala.

This is not to suggest, even remotely, that their judgments are wrong or biased. The only endeavor is to underline the fact that immediate post-retirement appointments of the said judges create a cloud over the sanctity of those judgments, irrespective of their merits. As it is well settled, the actual existence of bias is not required to vitiate the sanctity of judicial process; the perception of bias, founded on grounds which are not too far-fetched and hypothetical, taints judicial process.  The judicially accepted test of bias is the reasonable likelihood of bias and not the actual existence of bias( Rattan Lal Sharma v. Managing Committee AIR 1993 SC 2155). The significance of the oft-quoted adage ‘justice should not only be done but also seem to be done’ gets more profound in this context.

Similar questions arose when former Chief Justice of India P. Sathasivam was appointed as Governor of Kerala. It had led to a chorus of criticism that he was being rewarded for favouring the ruling party.  Justice Sathasivam however denied that his appointment had anything to do with his judgment quashing the second FIR against BJP President Amit Shah in the Tulsiram Prajapathi case. As Governor of Kerala, Justice Sathasivam had to negotiate embarrassing situations, when he had to sign an ordinance mooted by the Government to get over a Supreme Court decision, and when that Ordinance was later stayed by the Supreme Court.

Judges accepting jobs under the Executive certainly creates situations of conflicts of interest. It tends to undermine public faith in judicial independence. In the recent ‘master of roster case,’ the Supreme Court reiterated that public confidence was the greatest asset of the judiciary, and observed as follows:-

The faith of the people is the bed-rock on which the edifice of judicial review and efficacy of the adjudication are founded. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is greatest threat to the independence of the judiciary.

Immediate acceptance of post-retirement assignments certainly creates a dent on public confidence in judicial independence.  Justice Chelameswar declared that he will not take up any post-retirement assignment given by the Government. Justice Kurian Joseph has also made open his reluctance to accept such jobs. According to them, judiciary and executive should remain mutual watchdogs than mutual admirers, and post-retirement offers can lead to erosion of judicial independence. Justice B. Kemal Pasha, retired judge of the High Court, who raised dust with his controversial remarks in his farewell speech spoke against this practise as well. “When a judge is expecting a post-retirement job from the government,  normally he will be in a position not to invite displeasure from the government at least in the year of his retirement. There is a common complaint that such judges do not dare to invite displeasure from the government by expecting post-retirement jobs,” he said while recollecting the words of Justice S H Kapadia and Justice TS Thakur that no judge should accept any salaried job under any government at least for a cooling period of 3 years from his or her retirement.

At the same time, to squander the wealth of experience and insight of retired judges is also not ideal. There has to be mechanism to channelize the potential of retired judges back into the system. At present, most statutory commissions/tribunals require to be headed by retired judges of the Supreme Court or High Court.

In this regard, the suggestion regarding a “cooling off” period for appointment of retired judges as mooted by former CJIs Justice Kapadia, Justice Lodha and Justice Thakur assumes relevance.  Former CJI Justice Lodha had stated that he would not take any post-retirement benefit for a period of two years after retirement.

Arun Jaitley, in his capacity as the Leader of Opposition in Rajya Sabha in 2012, had advocated for a cooling off period for Judges, saying that “pre-retirement judgments are influenced by a desire for a post-retirement job”.

"My suggestion is that for two years after retirement, there should be a gap (before the appointment), because otherwise, the government can directly or indirectly influence the courts and the dream to have an independent, impartial and fair judiciary in the country would never actualise," Jaitley had said.

[See Jaitley's Speech here]

But irony couldn’t get starker when Jaitley’s party, after assuming power at Centre, enthusiastically offered immediate post-retirement offers to judges- Justice P. Sathasivam, Justice Aggarwal and Justice Goel. Also, the present government has included a lot of provisions in the Finance Act, 2017, which cuts at the root of judicial independence. These provisions have the potential to affect the independent working of several quasi judicial bodies like NGT, NCDRC etc.  They amend the provisions of parent Acts of various Tribunals, and delegate the power to appoint and prescribe qualifications to the Central Government through rule-making. Thus, the composition and working of Tribunals can be regulated through executive rule making. These provisions have been challenged in the Supreme Court on the ground that they infringe upon the doctrine of separation of powers and undermined the independence and autonomous functioning of bodies. The Madras High Court, dealing with the issue, ordered that all appointments made to Tribunal as per the 2017 amendment will be subject to the final result of petitions challenging the amendments.

 In Madras Bar Association v. Union of India, AIR 2015 SC 1571, the Constitution Bench of the Supreme Court had held the National Tax Tribunal to be unconstitutional, as its composition impinged on judicial independence and separation of powers, which were held to be basic features of the Constitution. “It is not possible to accept that a party to a litigation, can participate in the selection process, whereby the Chairperson and Members of the adjudicatory body are selected”, the Court had observed in that case. Hope these observations ring a bell with all stakeholders. To say the least, the swift jump from one branch to another does not look graceful.

(Published in Live Law on July 7, 2018)

Selective Battles of Bar Concil of India-III

The BCI ought to do more ground check before making tall claims for 99.9%, because most discerning members of the bar do not wish to be counted in that 99.9%.

The Bar Council of India (BCI) seems like a sleeping leviathan which springs into action only to wage its “selective battles”.  During April it had come up with a resolution—semantically flawed and conceptually confused, against lawyers who intended to move an impeachment motion against the CJI, which was commented upon in an earlier article entitled “The Selective Battles of Bar Council”.  A sequel to that article is called for as the BCI has issued another press release—also semantically flawed and conceptually confused. This time, the BCI has chosen to target a judge, after his retirement. The press release by the BCI criticised Justice Chelameswar for certain remarks, which the BCI felt he made, during his post-retirement interview given to Rajdeep Sardesai of India Today.

The haste and carelessness with which the press release was issued are evident from the fact that the BCI got the name of their subject altogether wrong. The press release refers to “Justice Chemaleshwar” (whoever that is), and it is repeated throughout in it (of course, these are the days of Ctrl+C+V). No, this is not an attempt at nitpicking. This glaring error is symptomatic of the casualness with which the press release was issued. The press release condemns Justice Chelameswar for using words like “bench fixing”, whereas there was not even a single utterance of the word by him during the interview. The term was used by India Today’s Consulting Editor Mr. Rajdeep Sardesai, and in response, Justice Chelameswar had repeatedly and expressly refused to use words such as “bench fixing”. The BCI should have taken care to see that somebody who actually watched the interview drafted the press release.  Responding to the press release, Justice Chelameswar took a jibe at the BCI that they could not even spell his name correctly and said, “I really don’t have time to react to every person. They even alleged that I had alleged “bench fixing” in an interview with a television news channel. It was the person interviewing me who said that. I only replied to that. I told him that we really we really don’t have to go to the extent of calling it that, but yes, the situation is certainly of concern. But if the BCI attributes to me words I didn’t say, there is nothing I can do about that. The BCI, in its press release, could not even spell my name properly. Some of them will one day become judges.”

The BCI also indirectly accused Justice Chelameswar of bench-fixing, when it states: “Such instances have been repeated not once but on two-three occasions. Justice Chelameswar did not do so and, in fact accepted and agreed to hear certain matters himself which led to the beginning of a wrong practice. Had such irregular or unlawful orders been sought to be set aside by the Chief Justice of by some other judge then there would have been no harm done”. Obviously, the reference is to the proceedings in ‘medical bribery case’, where the bench headed by Justice Chelameswar ordered SIT inquiry regarding corruption allegations in the Prasad Education Trust case. Since the bribery allegations were with regard to a case disposed of a bench led by the CJI, the mentioning was made before the bench headed by Justice Chelameswar, the second senior judge. Terming the allegations “grave and serious”, the matter was referred to be decided by a bench constituted by five senior-most judges, excluding the CJI. On November 10, the very next day, this order passed by the two-member bench headed by Justice Chelameswar was annulled by a hurriedly constituted constitution bench led by the CJI, in a raucous hearing session marred by an unprecedented drama. The Bar Council does not see anything unusual or extraordinary in the hasty manner in which the constitution bench was constituted and conducted. It also did not come across as impropriety to the BCI that the CJI chose to constitute a bench, including himself, to hear a case concerning himself. The BCI has not issued any statement regarding the corruption allegations unravelled by the arrest of former Orissa HC judge Justice IM Quddussi. The BCI acts like an ostrich in the sand when it comes to corruption allegations in the judiciary. The BCI does not respond when lawyers get attacked and killed in court premises. There is no similar press release when human right lawyers are persecuted by the establishment. The legal education scenario is in shambles and persons with fake degrees have infiltrated the profession. But the BCI seems unconcerned. If only the BCI addressed other pressing issues affecting the legal profession with the same zeal shown to lecture a retired judge on propriety!  This is another instance of disoriented activism shown by the BCI after it came up with a report justifying the demand for CBI probe by the accused in the Kathua rape-murder case, when it was actually deputed to inquire into alleged acts of violence by lawyers in Jammu which obstructed the filing of charge-sheet in the case!

The veiled criticism made to the press conference of judges at Justice Chelameswar’s residence last January is inopportune and out of place. Why has the BCI waited till the retirement of Justice Chelameswar to comment on the press conference? The BCI tries to impute political motives for the press conference by stating that Justice Chelameswar met CPI leader D Raja immediately after it. These are sorry attempts to skirt the central issues. The BCI has not made any meaningful attempt till date to objectively probe and analyse the issues raised in the conference. Instead, it raises the shield of propriety to bury the issues.  Propriety amounts to a virtue only when situations are in order; otherwise, it is just an excuse.

The most startling part of the press note is when the BCI states: “it is the great fortune of the country that 99.9 of the legal fraternity and the judges have seen through this ulterior motive and mindset and such people who have attempted to bring disrepute to the institution for their vested interests, disrepute to the institution for their vested interests, have had to suffer a setback at each step(emphasis supplied). As BCI is largely known for its omissions than actions, this statement is most noticeable for its conspicuous omission after the figure 99.9.

Well, the statement deserves criticism not just because it’s made without an elementary proof-check, but because of being outlandishly baseless. It takes a lot of brazenness for the BCI, which is not a representative body at present, to make an outstanding claim on behalf of 99.9% of the legal fraternity. The BCI ceased to be representative long ago. The much-delayed elections were held during last March, after a lot of litigation in the Supreme Court. Even though elections are over, the new Council is yet to be constituted. The present Council is continuing on default, akin to a care-taker government, and hence cannot claim to enjoy majority support.

99.9 is a magical figure, commonly used in advertisements to mark success rate of products like disinfectants. 99.9 denotes the vanquished, silenced and beaten (even demonetisation claimed to have wiped out 99.9% notes). The BCI ought to do more ground check before making tall claims for 99.9%, because most discerning members of the bar do not wish to be counted in that 99.9%.

Published in Live Law on June 30, 2018

Silenced By Fear? Extra-Constitutional Threat To Press Freedom

What can the Constitutional Courts do when fundamental freedoms are curtailed by non-state actors like troll armies and fringe elements?

As people all over the country were keenly awaiting the sighting of the crescent moon on June 15- believers for declaration of Eid-ul-Fitr and non-believers in anticipation of an extended weekend- the editor of Rising Kashmir, Shujaat Bukhari got killed by militants in front of his office at Srinagar. As many as 16 bullets were pumped into his body from close range by the militants, who were agitated by his attempts to negotiate peace in Kashmir.

Earlier that week, the Special Investigation Team of Karnataka Police got a break through in the case of murder of journalist Gauri Lankesh, who was shot dead in front of her house at Bangalore on September 5, 2017. The SIT announced to the media that it had arrested one Parashuram Waghmare, who had allegedly fired the gun at Lankesh. According to the SIT, he confessed that the killing was made to ‘save his religion’.

On June 7, journalist Barkha Dutt revealed in Twitter that she had received chilling veiled threats and “messages” from powerful people in the Establishment that she and her family were under surveillance.

https://twitter.com/BDUTT/status/1004609085533122561

For this tweet, she was abused and trolled, and some of them commented that she could go to Pakistan if India was unsafe for her.

During April, journalist Rana Ayyub, who also authored the book Gujarat Files about the complicity of State Government in Gujarat riots and encounter killings, became the victim of cyber abuse, which was vituperative and organized. A fake tweet attributed to her, in which she was depicted as justifying the rapists involved in Kathua incident, was widely circulated in social media, triggering off a co-ordinated cyber attack on her. It was an online lynch mob on prowl, which continuously posted hateful, abusive and threatening comments on her profile page. Not stopping at that, a morphed obscene video of hers was widely shared. “I couldn’t sleep for three nights. I couldn’t talk, I couldn’t believe what was happening.”, she said. The situation was so grave that it got global attention, prompting the Office of High Commissioner of United Nations Human Rights to issue a statement, as follows :- We call on India to urgently take steps to protect Rana Ayyub and to ensure the threats against her are promptly and thoroughly investigated. The Government has an obligation to provide effective protection to those who receive death threats and to protect individuals from foreseeable threats to life or bodily integrity,”

In late May, Ravish Kumar, Executive Editor of NDTV, described the gruesome level of online threats and abuses directed at him, the graphic details of which are blood-churning.

During March 2108, three journalists -Sandeep Sharma of Madhya Pradesh, Navin Nischal and Vijay Singh of Bihar- were killed in what appeared to be stage-managed hit and run incidents.

These are highly disturbing developments, which do not befit a robust democracy built on Constitutional values. In this backdrop, it will not be an exaggeration to state that journalism is one of the riskiest jobs with most occupational hazards in India. It is not surprising that India slipped to 138th rank in the World Press Freedom Index this year. The notable feature of this trend is that the threat is not manifestly emanating from the State as such; but from fanatics, bigots and cyber mercenaries, who organize themselves into a well-oiled machinery to launch attacks, seemingly with patronage of powers that be. What protection does our Constitution offer to press freedom against attacks by such non-state actors?

Extra-constitutional forces

Fringe has become the new mainstream these days. The fringe elements, which used to regularly indulge in hate-speeches, slut-shaming, death threats, rabid abuses, etc have gained considerable power and influence over the socio-cultural space over the past few years. They have attained more visibility, and consequentially more acceptance amongst the general public.They seem to be ventilating the ugly prejudices and bigoted aspirations, which the mainstream middle-class have kept suppressed in their psyche to maintain the veneer of respectability.

The accused in Gauri Lankesh murder are reported to have links with Sri Ram Sene Chief Pramod Muthalik. Though Muthalik denied links with the accused, he himself showed no hesitance in displaying his contempt towards Gauri Lankesh in bilious innuendos, which cannot be reproduced in this piece. Most of the twitter accounts which celebrated the death of Gowri Lankesh using unparliamentary language were proudly flaunting the fact that they were followed by none other than the Prime Minister of India. The celebration of the death of Gauri Lankesh had grown to sickening proportions that Union Law Minister Ravi Shankar Prasad was forced to post a tweet condemning the celebration of happiness over her dastardly death. As per a report in “The Wire” even Ravi Shankar Prasad was not spared by bigoted trolls for his statement. Bowed down to media, secular and liberal bullies? We work for you tirelessly, selflessly. This is the reward,” tweeted one user, whose profile stated that she was “blessed to be followed by Modi”, as a response to Ravi Shankar Prasad’s condemnation.

Trinamool M.P Dereck Obrien had listed out the names of the twitter accounts followed by the Prime Minister, who were notorious for being abusive and vitriolic against those expressing views against the government. He had said "there are 26 Twitter handles which give all kinds of threats, including rape, to people for posting anything against the government. Two of these handles have been suspended by Twitter. They were invited to the Prime Minister's social media party". Later, those names listed out by Obrien were expunged from the records of Rajya Sabha on objection taken by Union Minister Smriti Irani that individuals who were not present in the House should not be condemned unheard.

There seems to be an invisible umbilical cord which links the ruling parties and the troll armies, and they often act in tandem.Whenever journalists raise uncomfortable questions against the establishment, or criticise the tenets of the cultural ideology espoused by the ruling dispensation, it is the troll army which gets rattled, and they spring into action. The trends and causal connections are so obvious that one might even doubt whether they are informal agents of governments who are deputed to do “dirty work” at its behest. Because, the troll-army is not shy of displaying the patronage they enjoy from those in power, and they are ‘performing’ their functions with absolute impunity and brazenness. The book “I am troll : Inside the Secret World of the BJP’s Digital Army” by Swati Chaturvedi reveals how trolls are part of highly organized IT cells of political parties, effectively used by politicians to further their agendas. What can the Constitutional Courts do when fundamental freedoms are curtailed by non-state actors like troll armies and fringe elements?

It is well-settled that ‘press freedom’ is part of freedom of speech and expression protected by Article 19(1)(a) of the Constitution of India. The grounds on which State can restrict press freedom through law on reasonable grounds are clearly spelt out in Article 19(2). The Indian judiciary has been generally pro-active in upholding press freedom against legislative excesses by the State. But, how can these traditional safeguards ensure protection against extra-constitutional agencies like troll armies and fundamentalist outfits? The judiciary has developed the concept of ‘horizontal application’ for protection of fundamental rights against infringements by non-state actors. But again, how can that be effective against unidentifiable, faceless trolls, who rummage through social media profiles like hydra-headed monsters? It is often pointless to look up to the government and traditional legal machinery, because the interests of the governments in power and these supra-legal entities often merge. Also, since these elements wield substantial influence in the mainstream, the ruling parties are wary of rubbing them the wrong way, and hence cow down to their ‘hecklers veto’.

Our jurists and legal philosophers should ponder over this issue to evolve constitutional tools to safeguard freedoms from the onslaught of extra-constitutional entities. The Courts have developed the concept of ‘John Doe order’ , ‘super-injunction’ etc to afford universal protection for intellectual property rights against potential threat of infringement by anonymous persons who are large in numbers. Extrapolation of this concept to afford constitutional protection to press freedom should be considered to address the new-age problems caused by non-state actors. Because, to let these supra-legal elements have their way means the subversion of the Constitution itself.

Perhaps, the problem is too deep-rooted to be solved by law alone. As stated above, the trolls and fringe elements reflect the hidden thoughts of the mainstream majority. Therefore, in a democracy powered by majoritarian sentiments, the fringes will enjoy defacto legitimacy. The principal architect of Indian Constitution Dr.B.R Ambedkar had a dystopic vision of Indian democracy, when he said, “Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic”. Sadly, these words hold true even today. Unless the Indian mindset is fundamentally changed to become more liberal, broad-minded and accommodative of diversity, the role of Courts and Law will be confined to only offering ad-hoc quick fix solutions, and the fundamental freedoms will remain inalienable only in the print of the Constitution.

Published in Live Law on June 23, 2018